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					MRR-26-2008 09:50Q FROM:




                                      RONALDSCHNEIDER
                                            AlTORNEY A T L A W
                                    900 MASSACHUSETTS, SUITE600
                                      LAWRENCE, KANSAS 66044
                                         PH:(785)84 1-2040
                                                 856-0243
                                         F~X:(785)




                                       FACSIMILE COVER SHEET

        TO:           Debbie Nuss

        FAX;          785-537-6199

        FROM:         Ronald Schneider

        DATE:          March 26,2008

        RE:           Please see attachment

        NUMBER OF PAGES: Including Fax Cover Sheet




        NOTE:         This facsimile has been transmitted to the named recipient by a lawyer and
        is intended only for the use of that person. Some or all of the enclosures may be
        confidential in nature and constitute information which is privileged; the sender neither
        intends to waive any privilege, nor to authorize further dissemination or copying, except by
        the named recipient. If the reader is not the named recipient or that person's authorized
        agent, or this transmission has been sent by inadvertence, please notify sender
        immediately and return the document by U.S. Mall.
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                                    RILEY C O U N N DISTRICT COURT
                                               Division II


                                     Hon. Metyl D. Wilson, District Judge
                                        Molly K. Kujowa, CSR, RPR
                                           100 Courthouse Plaza
                                                P.O. Box 158
                                       Manhat tan, Kansas 66505- 158
                                                                0
                                               (785) 537-6372
                                            FQX(785) 537-6382

                                    FAX TRANSMISSION COVER SHEET

          Date:            March 26, 2008

          To:              Ronald Schnelder



          From :           Molly Kujawd Judge Wilson 's Office

          RE:              Manhattan Citizens et 01 v. City of Manhattan
                           Case No. 08 CV 41

          YOU SHOULD RECEIVE 6 PAGES, INCLUDING THIS COVER SHEET. IF YOU
          DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL (785) 537-6372.
                                                            * * a * *

          Message:
MRR-26-2008 09:50R FROM:
    mar cti zuuu ~ : > l t i r n    tir L H S ~ K J ~t I ~   x




                          IN THE DJSTHICT COCRT OF KUEY COUNTY, KANSAS
                                                     DIVISION 11


          MANHATTAN CITEENS FOR SUSTAINABLE                        1
          DOWNTOWN REDEVELOPMENT, TNC. ; and                       1
          GARCIA-QUNN'I'ANCE APARTMENTS, L .L.C. ;                 )
          and DARRELL 1IlLLS; and WILLIE JJ.SMITH                  1
          and KAKEN B. SMITH, and PAUL YARBROUGH                   1
          and MlSTY GA'NDARA; and LEX PEA.RSONand                  1
          PA'TTY PEALSON,                                          1
                                             i ,
                                      Plain l a                    1
                                                                   1
                   VS.                                             1      Case No. 08 CV 41
                                                                   1
         THE CITY OF MANHATTAN, KANSAS,                            1
                                 Defendants.                       1
                                                                   1


                                                      ORDER

                   Now, on this 26Lh of March, 2008, the matter cotnes before the Court for decision on
                                   day

          the Motion to I,imit Discovery filed by the del'endant, City o f Manhuttan. The matter came on for

          hearing on March 24,2008,wherein the plaintiffs appeared by Ronald Schneider, Attonley a Law.
                                                                                                 t

         'The defendant, City of Manhattan, appeared by William I-. Frost, Attorney at Law. Dial, LLC and

         Dial Manhattan Sllops, I.T.C, appeared by Neil R. Shurtlidgc, Attorney e l Law. Aftcr hearin!

         argument? of counsel, the matter wm taken under advisement Tor appropriate disposition by the

          Court.

                   PACTS:

                   On June 6,200 , the City of Manhattan approved rt PUD development of approximately I 4
                                6


                                                        Page I
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               acres of land   i Manhattan, Kansas. In August of 2007, an application was made to amend the
                                n

                              n
               exisling PUD, O Januury 15,2008, d e r nunicrous hearings i front of the Manhattan Urban Area
                                                                          n

               Planning Board and the Manhath City Commission, the City approved the second reading of the

               ordillance anending thc P T zoning. It is this amended P U D ordinance which the plaintiifs now
                                        ZD

               cl~allengc.In fact, the plaintiffs acknowledge that the original PUn (June 6,2006), i valid.
                                                                                                   s

                      The plaintiffs allege that the City violatcd the law in five specific categories:

                      1        l'rocedwal violations;

                      2        The Cir), Commission improperly prejudged the proposed amendment;

                      3.       The City Commission impropcrly received information and comrnunicalions

                               outside o f the public (hearing);

                      4.       Proper notice was not given;

                      5.       The City prevented the plaintiff.. their right to file a prolest petition..

                      The parties all a p e that the sfandard of review by this Court is one of reaso~~ableness 13.
                                                                                                             (A4

               Lunduzc us. Ct Council ofCity ofOverlund Park, 244 Kan. 257, and Golden v. City orf'Overland
                            iy
                      ,
               P a ~ k224 Kan. 591).

                      'T'heCity argues that this determination, reasonablcness,is to be determined upon the basis

               of hcls which wcre presented to the zoning authority (i.e. record), and therefore no discovery

               should be allowed. The plaintiffs argue that discovery is appropriate, since the C o u t may trtkc

               additional evidence in a zoning appeal where theevidence i relevant to the issue of reasonableness,
                                                                        s

               This Court has previously ruled that the City has until April 7 lo         ~ T O ~ U C record,
                                                                                                  the ~         and the

               plaintiffs have until April 21 i q which to submit additional iten= to the City's proposed record.

                                                                 Page 2
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                  As previously stated, the plaintiffs allcgc tive areas of concern, which should allow them l
                                                                                                             o

          procccd with discovery. As to item numbas 1 and 4, the record will reveal whether or no8 the law

          was violated, and therefore no discovery i necessary.
                                                    s                      All cases cited by the parties statc that the

          trial court may take additional evidence in a zoning appeal where the evidence is relevant to the issue

          of reasonableness (see Landau, supra).

                  Llnlike all other cases cited by the partics, this case is unique. Those cases cited stern Gorn

          the original deniaI of a rwoning request, or the gmnblg of the original rezoning request. The case

                around tht: granting of an amendment to a previously approved PUD. During the time
          ~enlers

          between Lhe granting of the original PUD and the granting of the m e n d e d PUD,much has laken

          place. Property has been condemned and ton1 down, streets have been removed, andnew buildings

          cons~ructed, name only a few. Because of all thathas taken place, and all that is scheduled to take
                     10


          place, all parties, including the plaintiffs, the Cip, Ilial-Manhattan, and others unknown, need this

          case rcsolved in a timely manner.

                  Tl~erefore, is h Order, Judgment and Decree of the Court that until further order of the
                            it    e

          CouI-t, discovery shall be limited to the idcptifi~atiavand production ot'thc record on appeal of the

          City's zoning dccision, and i deposing the City Council members. Inquiry will be permitted as to
                                      n

          the facts or factors that were considered, but plaintiffs c m o t inquire into their mental processes

          in reaching the rezoning decision. The plaintiffs may inquire as to their claims of prejudgment

          and/or communication outside of the public which illegally influenced their decision.

                  These depositions will be completed no later than April 28, 2008; however, any

                      deposed shall be considered held open and deponents subject to recall at the Court's
          comn~issioner

                                                                  Page 3
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         order.

                   T
                  I IS SO ORDERED,




                                                                F Y
                                                               Dis   ct J   ~ I - Division II
                                                                              ge




                                                      Page 4
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                                          CERTIFICATE OF M AILlNG

             I hereby certify that on this 26' day of M u c l ~2008, I served a hue and correct copy ofthe
                                                               ,
       above and foregoing Order, via I'acsiruile transmission, to thu following:

       Ronald Schneider
       Pax No. (785) 856-0243

       William L. Frost
       Fax N o . (785) 776-9212

       Neil R. Shortlidgc
       Fax. No. (9 1 3) 344-678 1

       Price Hanks
       I% NO.(785) 841-2296
        ;

       Gtlbrielle 'I'hompson
       Fax. No. (785) 539-3336



                                                                              Reporter - Division II
                                                                  ~fficialtourt




                                                         Page 5

				
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